Anthony Scrivener: How a mullah and a father put British justice on trial

The belated prosecution of Abu Hamza, the débâcle of the Sion Jenkins trials and the handling of the killing by police of Harry Stanley all demonstrate that the powers and duties of the Crown Prosecution Service need to be redefined, and the way in which prosecutions are organised needs to be radically changed.

The Phillips Commission in 1981 identified three main criticisms of the prosecution system. The first was that a police officer who investigated a case could not be relied upon to make a fair decision about whether to prosecute. Such a decision needed to be made by someone independent of the police.

The second criticism was that different police forces seemed to be applying different standards when deciding whether to prosecute. A consistent approach was needed.

The third criticism was that too many weak cases were being brought before the courts, and a high percentage of cases were being stopped by the trial judge as there was insufficient evidence to leave the case to the jury. This criticism is still valid more than 20 years later.

In an attempt to remedy these deficiencies, in 1985 the Crown Prosecution Service was established. The then prime minister, Margaret Thatcher, was believed to prefer to have a district attorney system, as in the US. Fortunately, that was not how it turned out.

The CPS was given the exclusive responsibility for advising and running all prosecutions and was to be entirely independent of the police. This would ensure the independence that was so badly needed.

Consistency could be achieved by placing all the prosecution responsibilities upon the CPS and issuing a code with which it had to comply. Once again the presumed answer to the problem was to give more power to the CPS. It was thought that the problem with thin cases being thrown out by the trial judge would be solved by putting the CPS in charge, which would advise properly on matters of evidence. So the remedy lay in the setting up of the CPS.

As often happens with bodies set up by the government, things seemed to grow and grow, with the result that today the CPS oversees 42 separate areas, each headed by a chief prosecutor. There are around 5,800 staff, of which at least 2,000 are crown prosecutors and legally qualified.

The CPS decides whether there is a realistic prospect of a conviction: it is the CPS that decides whether it is in the public interest for a prosecution to be brought. It is the CPS that decides what the charges should be. It is for the CPS to keep the case under constant review and decide whether the case should proceed to trial.

In order to carry out its functions, it is for the CPS to advise on evidence and provide guidance to the police. It is the duty of the CPS to ensure that all relevant evidence is put before the court.

There is a published code for prosecutors, now in its fifth edition, with which all crown prosecutors must comply. The code emphasises the independence of the CPS and that it is the CPS that has the power and the duty to make all the relevant decisions concerning a prosecution. The police are not mentioned in the code.

The establishment of a national Crown Prosecution Service not only brought about a change in culture but gave omnipotent powers to the CPS at the expense of the police, and, in fact, created new areas of friction within the prosecution process. Before the CPS was established, some areas had a county prosecuting solicitor, who worked closely with the police and who did not claim to have the pre-eminent status of the CPS. In other areas, the prosecution work was farmed out to local solicitors. This often worked well because the more senior and experienced solicitors tended to prepare the case personally before sending the papers to counsel. Here again, the solicitor worked with the police without bothering to establish who had the right to make the decisions. The solicitor had his or her own professional rules to observe, covering such matters as making appropriate disclosure to the defence.

The placing of the CPS in this dominant position inevitably causes friction on occasions. Senior and experienced police officers sometimes complain that their decisions are judged and overruled by young crown prosecutors with little experience. If the crown prosecutor decides that a prosecution should not be brought, there is nothing the police can do about it except to try to get the papers sent to counsel for independent advice.

If the crown prosecutor refuses to send the papers to counsel, apart from getting a senior police officer to bring pressure to bear, there is nothing that the police officer can do.

The duty to disclose all relevant material to the defence is placed upon the crown prosecutors by the code, but it is unclear whether there is any sanction against them if they are in breach. Although unstated, there must be a similar duty upon the police. The ability of the CPS to make the correct decision depends upon the police not only carrying out an effective investigation, but also in disclosing all material documents to the CPS in the first place.

In the Jenkins case, the prosecution contended that the tiny specks of blood found on Sion Jenkins's clothing were caused by him striking the deceased on the head with a weapon. After the first trial, the defence called an expert who was able to show that the specks could have been caused by the dying gasps of the victim.

At the first appeal, the prosecution argued that to have this effect there had to be a blockage in the victim's respiratory system and there was no evidence of this. Just before the second appeal began, the prosecution revealed for the first time - years after the first trial - that it had found a document which showed that there had been such a blockage. A retrial was granted. It is still not known how this non-disclosure came about or who, if anyone, was at fault in not disclosing it.

It is essential that in all cases the CPS and the police work together as a team, not only taking independent advice where necessary, but being seen to be doing so.

The Abu Hamza case illustrates another area of friction. This was a case of the utmost importance and raised issues of security. The police sent advice files to the CPS on two occasions, once in March 1999 and again in June 2003. The CPS decided that a prosecution was not justified, without taking any independent advice, and found that there was "clearly insufficient" evidence. It was not until October 2004 that the CPS decided that there was sufficient evidence to prosecute. The fact that the CPS was quite content to make these important decisions on its own is mind-boggling.

The majority of crown court prosecutions are conducted by counsel. The more serious cases are prosecuted by senior counsel of many years' experience. At the Central Criminal Court, there are appointed Treasury counsel who undertake the important criminal trials.

The experienced jury advocates are best able to advise on the merits of a complex or important criminal case. They are best able to advise on evidence and assess its weight and its admissibility. They are best able to say whether a fresh line of enquiry should be instituted and whether there is a realistic chance of success.

Crown prosecutors do not act as advocates. Despite this, the decision whether or not to prosecute in this important case seems to have been decided by the CPS and not by an experienced prosecution counsel. There is no reference to taking advice from counsel in the joint statement put out by the CPS and the police.

If the CPS is to retain its pre-eminent position, the code for prosecutors needs to be amended, and to include references to the duties on the police and to the duty on the CPS to obtain independent advice from experienced counsel. The police should be brought within the code and their duties owed to the CPS should be expressly stated in it.

The decision to prosecute should involve the police in discussion with the CPS, and in a complex or important case there should be a duty to take the advice of experienced counsel.

There is little point in having a pool of experienced advocates if their opinion is not sought and the decision is left solely to the CPS. After all, it is the experienced advocate who will conduct the case at trial.

The sad killing of Harry Stanley by the police, who mistook a table-leg he was carrying in a hold-all for a shotgun, is instructive in another respect.

Such cases, involving innocent persons and mistakes by the police, cause grave concern to the public. Despite the constitutional position, the CPS is seen by the public as being close to the police. In all such cases, the advice of independent counsel should be obtained with respect to whether the police officers involved should be prosecuted, and this should be publicised. This has happened in the equally sad and similar case of Jean Charles de Menezes. Not only is the advice independent, but it is seen to be so.

Parliament was clearly right to reject a district attorney-style option, but the existing procedures should be reorganised to encourage the CPS and police to work together as a team. The police should be brought within the code for prosecutors and their duties to the CPS stated. The police should be involved in the decision to prosecute, and the CPS should be required, where necessary, to take expert, independent advice from counsel.

A separation of powers and status is less important than harnessing the best possible talents and resources to work together to fight serious crime.

Anthony Scrivener is a QC and former chairman of the Bar